Simon Lee | Judicial Power: What is Left Unsaid?

The Judicial Power Project is on to something with its collection of a dozen essays, entitled Judicial Power and the Left published earlier this year. It is just that the something is not, in my opinion, a deepening of our understanding of judicial power or, at least, not yet. Nevertheless, the project and the editors are to be congratulated on bringing together a diverse range of authors, from different disciplines and parts of the world, who reveal much about their own political and academic perspectives, including their senses of the Left.

The general tone is that the Left should beware judicial power. This sound advice has two limitations. First, much the same could be said of the Right and indeed has been said in another collection of essays from this same project, Judicial Power and the Balance of our Constitution. Second, since the Left should also beware the elected government, the parliament, the civil service and business, as well as any parts of the media or the academy where they do not prevail, this is not that illuminating of judicial power in particular.

Before the collection turns its attention to the law further afield, the first seven essays all pay homage to J.A.G. Griffith’s The Politics of the Judiciary (first published in 1977). There are further apposite references to two of his scintillating lectures. Four essays, by Carol Harlow, Mike Macnair, K.D. Ewing & John Hendy and Helen Thompson make cogent, specific points about the deficiencies of judicial power, just as the work of Griffith himself contains much impressive detail.

At the broad brush level, however, Griffith’s argument as interpreted by generations of students tended to run that the judges were conservative and/or Conservative because they were privileged old white men who had been to public school and Oxbridge. I called this ‘the Tory Benn thesis’ because it does not account for the fact that the most prominent politician of the Left at the time of Griffith’s book, Tony Benn, was also a public school- and Oxbridge-educated, old white man who was definitely not a Tory. Of course, not all the judges are men or from that same background nowadays and even when they were, they disagreed with one another, with 3-2 and 2-1 splits, and with one level of the courts overturning another.

The best riposte to shallow thinking about the judiciary by the Left came in Marxism Today in 1982 but is disappointingly omitted in this collection:

‘The political Left have a regrettable tendency to jump up and down with a Thurber-like frenzy, all the more unconvincing for being transparently synthetic, when the establishment behaves as the establishment always behaves. Highpitched complaints that the Law Lords had delivered ‘political’ judgments show a simple misunderstanding of the role of the judiciary in this country … The judiciary are not a collection of muddle-headed old buffers out of touch with the real world’

Danny Nicol’s essay on ‘The Left, Capitalism, and Judicial Power’ is perhaps the most frenzied in this collection. Far from praising the Supreme Court for asserting some restraint on Theresa May’s authority to invoke Article 50, Nicol criticises the ‘reverential tones towards judges’ of the ‘pro-Corbyn Shadow Justice Secretary Richard Burgon’ who ‘defended the Miller judges by invoking the rule of law’ when, ‘on a class reading … judges form part of that section of the politico-economic elite that favours the capitalistic settlement of “soft Brexit”.’ So, on Nicol’s approach, ‘In Miller, the judges figured that their best prospect for achieving soft Brexit lay in empowering the strongly pro-EU House of Commons. They decided the case accordingly.’ It is good to see critics jumping up and down but I would have liked all the more to have read how Nicol accounted for the powerful dissenting judgments.

My recommendation for calming the frenzy is to evaluate judgments against specific sources of error. My typology of different dangers is based on ‘Things Necessary to be Continually had in Remembrance’ (1660), notes to himself on first becoming a judge by Sir Matthew Hale, later Chief Justice,:

‘That in the execution of justice, I carefully lay aside my own passions,

and not give way to them however provoked.

That I suffer not myself to be prepossessed with any judgment at all,

till the whole business and both parties be heard.

That I never engage myself in the beginning of any cause, but reserve

myself unprejudiced till the whole be heard.

That I be not biased with compassion to the poor, or favour to the

rich in point of justice.

To abhor all private solicitations of whatever kind soever and by

whomsoever in matters depending.

That popular or court applause or distaste, have no influence into any

thing I do in point of distribution of justice.

Not to be solicitous what men will say or think, so long as I keep

myself exactly according to the rule of justice.’

Those last two points are illustrated by Alan Bogg’s moving opening to ‘Judicial Power and the Left: Deference, Partnership, and Defiance’, explaining the courage of a judge in the German Labour Court in 1933 when Otto Kahn-Freund decided in favour of employees dismissed for seeking to sabotage the broadcasting of ‘the Fuhrer’s first address to the entire nation’. Since I have called for fellow academics to identify paradigmatic as well as problematic cases, I should add that Bogg also makes some good points in praise of the UK Supreme Court (the one berated by Nicol and most recently criticised robustly by Sir Stephen Laws in his recent paper for the Judicial Power Project) for its 2017 ruling in favour of UNISON and against the government over employment tribunal fees. Bogg goes further than I would in describing this also as ‘courageous’. The notions of courage and of tyranny are further attenuated, and the frenzy mounts, at the end of Bogg’s essay when he seems to come close to comparing our current, weak, minority Westminster government to Hitler’s regime: ‘We live in extraordinary times. Consequently, and just like Professor Kahn-Freund in 1933, our judges may yet be called upon to do extraordinary and courageous things in the face of tyranny.’

Talking of tyranny, Chris Bickerton’s essay on ‘The Left’s Journey from Politics to Law’ praises the historian E.H. Carr’s Twenty Years’ Crisis. Foundational as it was for the study of international relations, I was taken aback to see this lauded as a ‘great work’ in this context of distinctions between law and politics. Bickerton records that it was ‘originally published in 1939 on the eve of the Second World War’. I would add that it had a more critical reception, given its admiration of ‘Herr Hitler’ even after Kristallnacht, coupled with its continuation of Carr’s promotion of appeasement and of his disdain for Churchill’s alternative approach to resisting fascism. Still, it is good to be shocked into resolving to read again a text which someone else respects.

In that spirit, I would recommend three other historians of the Left who have much more to say about the law and whose work might usefully be studied in any sequel to this collection. Carol Harlow’s magisterial essay begins by referring to E P Thompson’s critique of judicial power in the context of the Black Act 1723 in Whigs and Hunters, but there is no mention in this series of essays of his defence in that book’s afterword of the rule of law as an ‘unqualified human good’. Tributes to Thompson elsewhere, for instance this one by Stefan Collini, record that this public intellectual and tireless campaigner for causes of the Left was voted the most popular and respected man in the UK during the 1980s and the fourth most popular person, placed by the public behind only the Queen, the Queen Mother and Margaret Thatcher. Perhaps he paved the way for Jeremy Corbyn’s rise.

The other two intellectuals of the Left I expected to see discussed do not feature at all in this collection. Christopher Hill was an historian of impeccable academic and left-wing credentials. His Liberty Against The Law has twenty-seven essays logging shortcomings in the exercise of judicial power during the seventeenth century. Hill remained more sceptical than his friend Thompson about the law, concluding only that ‘law is no longer as blatantly and unashamedly class-slanted as it was during our period’.

Another historian of our radical and dissenting traditions who does not appear here, Stephen Sedley, is also a prolific writer on contemporary constitutional matters and has considerable experience of being a judge. When Sedley, a radical barrister and champion of the disadvantaged, first became a judge, I described his change of role as akin to the swashbuckling anti-establishment cricketer Ian Botham becoming an umpire. Given his 2012 essay on Judicial Politics in the London Review of Books defending judicial power against Jonathan Sumption’s critique, this was where I imagined a collection on Judicial Power and the Left might begin. If his first two collections of essays (Ashes and Sparks, Lions under the Throne) did not merit a single reference here, his third book of essays is due out shortly, Law and the Whirligig of Time, and will help to shape the wider debate.

Is there anything else left unsaid? The essayists are reluctant to define the Left so it might help to look next at lawyers who explicitly labelled themselves as being of the Left. For example, Part One of D.N. Pritt QC’s three-part autobiography is From Right to Left while John Platts-Mills QC’s single (but massive) autobiography is called Muck, Silk and Socialism: Reflections of a Left-wing Queen’s Counsel. Both served also as Members of Parliament and both revelled in being expelled by the Labour Party for being too left wing. Pritt could even rival Carr as an admirer of Stalin. But when they defended political prisoners in court cases in one foreign country after another, they often won because they could immerse themselves in diverse political and legal systems, marshal the facts and deploy legal arguments to persuade the judicial power to take a stand against other branches of state power. I introduce Pritt (who is discussed by Carol Harlow) and Platts-Mills (who escapes notice in this collection) because it is a mistake, in my view, to ignore the power of advocacy when seeking to understand judicial power. An example of the kind of scholarship which is enlightening is Meredith Terretta’s ‘Anti-colonial Lawyering, Postwar Human Rights, and Decolonization across Imperial Boundaries in Africa’, which addresses some of the work of Pritt.

Nor is it only the hardest Left of Left-wing advocates working the furthest away who make a difference through their impact on, and use of, judicial power. The biography of Gerald Gardiner QC by Muriel Box, is entitled Rebel Advocate. It is an unusual Lord Chancellor who has a biography written by an Oscar-winner (think Thomas More and Robert Bolt). Box was married to Gardiner and had more interesting things to say than to mention, for instance, the 1966 Practice Statement. But her choice of title is significant. She knew that Gardiner, although remembered as the great reforming Labour Lord Chancellor, saw himself primarily as an anti-establishment advocate standing up for those suffering injustice since his postgraduate student days, when he was summarily expelled by Oxford’s Vice-Chancellor for publishing a pamphlet by a recent graduate, Dilys Powell (later the noted film critic), arguing for equality for women.

The real game-changers in judicial power picked up that reforming baton from Gardiner. It was the genius of liberal or centrist or soft left lawyers at ease in the media, such as Anthony (now Lord) Lester, David (now Lord) Pannick, Michael Zander and the late Lord (previously Sir Leslie) Scarman, to make the case for giving the judiciary (and, incidentally, liberal centrist lawyers) a more crucial role in the UK’s constitution.

In sum, it is the sub-title of Judicial Power and the Left which is the better description of this collection at its best and of the Judicial Power Project as a whole: ‘Notes on a Sceptical Tradition’. Some people are sceptical of power which they espy at the other end of a political spectrum but credulous when it is closer to their own view. This might be said of Pritt’s assessment of Stalin’s show trials, for instance, or of those politicians, campaigners or pundits in the mass media, social media or academic journals who shout down or ignore or block out opposing viewpoints. In contrast, the practice of seeking to persuade independent judges through the quality of argument from competing viewpoints can do society a power of good.

Simon Lee is Professor of Law and Director of Citizenship & Governance Research at The Open University and the author of Judging Judges (Faber, 1988) simon.lee@open.ac.uk @paradoxbridge